Bidwell v. George B. Douglas Trading Co.

• Decision Date: 14 November 1910
• Docket Number: 26.
• Citation: 183 F. 93
• Parties: BIDWELL v. GEORGE B. DOUGLAS TRADING CO.
• Court: U.S. Court of Appeals — Second Circuit

183 F. 93

BIDWELL v. GEORGE B. DOUGLAS TRADING CO.

No. 26.

United States Court of Appeals, Second Circuit.

November 14, 1910

[Copyrighted Material Omitted]

Henry A. Wise, U.S. Atty. (William L. Wemple, Asst. U.S. Atty., of counsel), for plaintiff in error.

Percival H. Gregory, for defendant in error.

On writ of error to review a judgment entered upon a verdict directed by the court in favor of the plaintiff for the sum of $127.86, being a sum equal to the amount of interest due upon $1,266.36 which was unlawfully exacted by the defendant acting as collector of customs, as duties upon sugar imported from Porto Rico by the plaintiff. plaintiff. The defendant sued as an individual, exacted the sum of $1,266.36 from the plaintiff, which sum, with interest, amounted on September 30, 1901, to $1,394.22. The complaint alleges:

'IV. The defendant admits that on September 30, 1901, he refunded to the plaintiff the sum of twelve hundred sixty-six and 36/100ths dollars ($1,266.36), as alleged in the fifth paragraph of said complaint, but denies each and every other allegation in said fifth paragraph contained.'

At the trial George B. Douglas was the only witness sworn. He testified that he had calculated the interest to September 30, 1901, and added it to the amount originally paid, the total being $1,394.22, and that the plaintiff has never received from the defendant any other sum upon account of the cause of action other than the sum of $1,266.36.

After the testimony was closed the record proceeds as follows:

'Plaintiff rests.

'By direction of the court the jury returned a verdict in favor of the plaintiff for the sum of $127.86, subject to computation by the collector.

'Mr. Nichols: I take an exception to the direction and move to set the verdict aside as contrary to the law and the facts and for a new trial upon the judge's minutes, and on all grounds mentioned in section 999 of the New York Code of Civil Procedure, except the insufficiency of damages.

'Motion to set aside verdict denied.

'Exception.'

'Fifth.-- That on September 30, 1901, the defendant refunded to the plaintiff the sum of twelve hundred sixty-six and 36/100 ($1,266.36) dollars, leaving a balance still due the plaintiff amounting to one hundred and seventy-seven dollars and eighty-six cents ($177.86), which has not been paid.'

The answer alleges:

Before LACOMBE, COXE, and WARD, Circuit Judges.

COXE Circuit Judge.

There are no disputed facts. At the close of the testimony the court directed a verdict in favor of the plaintiff. The defendant did not move for a direction in its favor. The motion for a new trial presents no question reviewable in this court. Reader v. Haggin, 160 F. 909, 88 C.C.A. 91; Denison v. Shawmut Mining Co., 159 F. 102, 86 C.C.A. 292.

The only question, therefore, is whether the defendant's exception to the direction of a verdict for the plaintiff taken after the verdict was rendered, was well taken. The record presents the somewhat anomalous situation of the defendant insisting that a verdict should have been directed in his favor when he did not ask that this be done. If he had made such a motion it might have been granted. Instead of doing so, he waited until the verdict had actually been rendered and then coupled a motion to set it aside with an exception to the action of the court in directing it. So far as appears from the record, the defendant's counsel took no part in the trial from beginning to end. His first appearance, as stated above, was to take an exception to the rendition of the verdict after it had been rendered. This court, following the decisions of the Supreme Court, has frequently held that an exception taken after the jury has retired is valueless. Railway Co. v. Heck, 102 U.S. 120, 26 L.Ed. 58; Park Bros. & Co. v. Bushnell, 60...